TMI Blog2021 (1) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ate would not cover a transaction already executed in the earlier years and substantial obligations have already been discharged and a substantive right has accrued to the assessee therefrom. The pre-amended provisions will thus apply and therefore the Revenue is debarred to cover the transactions where inadequacy in purchase consideration is alleged. We thus find merit in the issue raised on behalf of the assessee. The order of the CIT(A) is accordingly set aside and the AO is directed to delete the additions made under s. 56(2)(vii)(b) of the Act and restore the position claimed by the assessee. No hesitation to hold that provisions of Section 56(2)(vii)(b) of the Act could not be made applicable in the hands of the assessee for the assessment year under appeal in the peculiar facts and circumstances of the case before us. Accordingly, the ground Nos. 1 2 raised by the assessee are allowed. - ITA No.1886/Mum/2019 - - - Dated:- 28-10-2020 - Shri Justice P P Bhatt, President And Shri M. Balaganesh, AM For the Assessee : Shri Sunil Makhija For the Revenue : Shri V.Vinod Kumar ORDER PER M. BALAGANESH (A.M): This appeal in ITA No.1886/Mum/2019 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Builder) for flats at ground height building, near new link road, Lokhandwala, Andheri (W), Mumbai 400 053. It was also submitted that originally the assessee proposed to buy flat Nos.1101 and 1102 in the same property which was later changed to flat Nos. 702 703 as per the letter submitted by M/s. Perfect Construction dated 17/12/2016. The assessee had submitted stamped receipts for first payment made to M/s. Perfect Construction for flat No.1101 dated 05/02/2008 and flat No.1102 dated 24/03/2007 for ₹ 10,04,128/- and ₹ 2,63,808/- respectively. The ld. AO issued summons u/s.131 of the Act dated 15/12/2016 to M/s. Perfect Constructions (builder) to produce copy of agreement for flat No.1101 and 1102. M/s. Perfect Construction (builder) vide their reply dated 17/12/2016 did not submit copy of the agreement but stated that in F.Y.2007-08, the assessee had shown his interest in booking Flat No.1101 and 1102 which was later changed to Flat No.702 703 respectively. The ld. AO again issued one more summon u/s.131 of the Act to M/s. Perfect Constructions on 26/12/2016 to produce the receipt of payments against the flats, copy of registration and allotment letter. 3.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a new allotment letter was issued by the builder on 10/01/2012 in lieu of original allotment letter dated 12/03/2007 and 20/03/2008. The entire copies of allotment letter, both old and new one, were filed by the authorised representative before the ld. AO. In the said letter, the market value of the said properties in the year 2007 and in the year 2008 were also furnished by the builder s authorised representative. Accordingly, the assessee pleaded that this letter from the authorised representative of the builder had not been taken due cognizance by the ld. AO while framing the assessment. 4.1. The assessee pleaded that since the provision to purchase the flats being flat Nos.1101 1102 were made way back in the year 2007-08 respectively, for which advance payment was indeed made by the assessee by way of booking advance, which is also supported by a stamp receipt from the side of the builder together with letter of allotment given by the builder to the assessee. The said allotment letter duly comprised of the extent of the property that was proposed to be built and the date of possession to be handed over to the assessee in respect of each of the flats. It was submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in terms of Section 50C of the Act. 4.2. The ld. CIT(A) taking note of the fact that the entire submissions have not been factually examined by the ld. AO as it was admittedly filed at the fag end of the assessment proceedings, proceeded to seek remand report from the ld. AO on all the aforesaid submissions made by the assessee. The ld. AO submitted the remand report dated 29/12/2017 categorically submitting that these evidences submitted by the assessee should not be appreciated at all as sufficient opportunities were given to the assessee as well as to the builder during the course of assessment proceedings itself and the ld. AO sticked on to the old addition made in the assessment. In rejoinder, the assessee stated before the ld. CIT(A) that it had not filed any additional evidences before the ld. CIT(A) and submitted that what assessee had pleaded before the ld. CIT(A) was only proper appreciation of facts and confirmation given by the builder directly to the ld. AO at the time of the assessment proceedings. Hence, the entire contentions of the ld. AO in the remand report are factually incorrect. Accordingly, assessee pleaded that no fault could be attributed on his part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The ld. AO had lost sight of proviso to Section 56(2)(vii)(b) of the Act which is very clear that the stamp value as on the date of agreement should be considered provided the said payment has been made by the assessee by account payee cheque or account payee demand draft. (c) In the case of assessee, the date of allotment letter supported by the details of payment made on that date has to be considered as the date of purchase of flat. (d) Flat No. Market value in F.Y.2007-08 based on the allotment letter given by the builder (In Rupees) Actual consideration as per the registered document (In Rupees) Difference (In Rupees) 702 44,67,090/- 42,99,600/- 1,67,490/- 703 85,39,230/- 80,00,000/- 5,39,230/- Total 7,06,720/- 4.4. With regard to the Co-ordinate Bench decision of this Tribunal in the case of John Flower (India) Pvt. Ltd., relied upon by the assessee before the ld. CIT(A) that the ave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 where the amended law came into force. The assessee, on the other hand, seeks to claim that his case would be covered by pre-amended provision in view of the fact that agreement for purchase of the property was entered into with the prospective seller in FY 2011-12 relevant to AY 2012-13 at which time the new law did not come into play. It was claimed that the purchase consideration was duly paid at the time of agreement in FY 2011-12 and the purchase was de facto completed except for the formality of registration. It was thus submitted that the transactions entered prior to the FY 2013-14 would be governed by the pre-amended provision which triggers the applicability of such provision only where there is a total lack of consideration and does not cover a case of inadequacy in purchase consideration. 7. We find merit in such plea advanced on behalf of the assessee. It is not in dispute that purchase transactions of immovable property were carried out in FY 2011-12 for which full consideration was also parted with the seller. Mere registration at later date would not cover a transaction already executed in the earlier years and substantial obligations have already been d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
